The hope of 1968 that public demonstrations can actually change the power structure has been lost.

1968 was a tumultuous year globally and domestically. The Prague Spring in Czechoslovakia--a very mild form of political and cultural liberalization within the Soviet bloc--was brutally crushed by the military forces of the Soviet Union.

The general strikes and student protests of May 1968 brought France to a standstill as demands for social and political change called the entire status quo into question.

On the other side of the planet, the Cultural Revolution was remaking China's still-youthful revolution, to the detriment of the political status quo, the intelligentsia and the common people.

The U.S.was convulsed with assassinations, civil unrest and mass demonstrations against the war in Vietnam and the political status quo (the Democratic Party convention in Chicago).

Ironically, much of the world was benefiting from two decades of rising prosperity and the demise of colonialism. When expectations exceed actual opportunities, discontent is the result. When the power structure is deaf to the discontent, a cycle of repression and disorder feed on each other.

Fifty years on, the ghosts of 1968 are still with us. With the advantage of hindsight, 1968 was the culmination of the belief that it was still possible for the common people to change the political and social order in a positive fashion-- to remake the status quo power structure into something more humane, accessible, just and fair.

The Western status quo bent but did not break. Nothing in the developed-world power structures actually changed. The status quo did break down in China, but the breakdown was not liberating; it was a catastrophe of injustice and destruction without precedent.

A new winter of discontent is chilling the air. Though the current state of affairs seems quite different from that of 1968, the basic context is eerily similar: decades of economic growth have ushered in widespread prosperity, but the benefits and power have gone disproportionately to the few at the top of the wealth-power pyramid.

The status quo power structures are deaf to the discontent of the common people, and respond with blandishments (Universal Basic Income, etc.), propaganda and a spectrum of repression.

The two greatest visions of a future dystopia were George Orwells '1984' and Aldous Huxley's 'Brave New World.' The debate, between those who watched our descent towards corporate totalitarianism, was who was right. Would we be, as Orwell wrote, dominated by a repressive surveillance and security state that used crude and violent forms of control? Or would we be, as Huxley envisioned, entranced by entertainment and spectacle, captivated by technology and seduced by profligate consumption to embrace our own oppression? It turns out Orwell and Huxley were both right. Huxley saw the first stage of our enslavement. Orwell saw the second.

We have been gradually disempowered by a corporate state that, as Huxley foresaw, seduced and manipulated us through sensual gratification, cheap mass-produced goods, boundless credit, political theater and amusement. While we were entertained, the regulations that once kept predatory corporate power in check were dismantled, the laws that once protected us were rewritten and we were impoverished. The state, crippled by massive deficits, endless war and corporate malfeasance, is sliding toward bankruptcy. We are moving from a society where we are skillfully manipulated by lies and illusions to one where we are overtly controlled.

It's also worth re-reading Mario Savio's extemporaneous speech to the Free Speech Movement's sit-in on December 3, 1964, on the campus of the University of California at Berkeley. Though the speech predates the Prague Spring and the Paris general strike by four years, it embodies the core dynamic of those social uprisings: the system itself is fundamentally flawed, and we are the raw material and product that keep the system operating.

There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!

The hope of 1968 that public demonstrations can actually change the power structure has been lost. The ghosts of 1968 inform us that there is no reforming the status quo power structure, there are only simulacrum reforms that fulfill the PR requirements of being seen as effecting reform. But people are losing faith in do-nothing policy tweaks; those tossed aside as detritus by the winner-take-most status quo realize the system is failing not just those on the margins but the entire citizenry. Those who look at the stripmined seas, polluted air, depleted soils and aquifers know the system is also failing the planet.

The system needs us as raw material, as "product," as consumers of the output of the machine. That we are consumed by the process--that awareness has faded into the shadows inhabited by the ghosts of 1968.

The New York Times recently carried an interesting article on the wedding-cake controversy that is now before the U.S. Supreme Court. The article pointed out that prominent lawyers who specialize in First Amendment cases are "vexed" by the controversy.

The facts of the case are simple: A Colorado bakeshop refused to create a wedding cake for a gay couple. The state charged the baker with unlawful discrimination. Those vexed lawyers are having trouble deciding whether the baker has a First Amendment right to refuse to create a wedding cake for the gay couple. Some of them say yes and some say no.

Floyd Abrams, who the Times calls the nation's most prominent First Amendment lawyer, at first leaned toward the baker, repelled by the notion that the state could require him to create some sort of artistic rendering that violated his conscience. But then he started leaning the other way, asking "Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people?" Abrams finally came down on the side of the gay couple.

Eugene Volokh, who the Times describes as a "leading First Amendment scholar," sided with the gay couple as well. While photographers and painters have the First Amendment right to decide which commissions to take, Volokh says, it's different with bakers. A chef cannot claim a free speech right not to serve people at his restaurant, he said, no matter how beautiful his dishes look.

Ilya Shapiro, a lawyer with the Cato Institute, said that writers, singers, actors, and painters are entitled to First Amendment protection but not caterers and limousine drivers. Bakers, he said, are a close call because they are "close to the line." Shapiro has sided with the baker.

The legal controversy vexing all these great legal minds is a classic example of what happens when the courts compromise (i.e., abandon) the principles of freedom. When that happens, it produces situations where lawyers are "vexed" and end up doing their best to pound square legal pegs into round legal holes.

The fact is that the wedding cake controversy has nothing to do with free speech. Instead, the issue is all about private property and the right to discriminate.

Let's start with a simple example: the owner of a home. I think everyone would agree that he has the right to decide who comes into his home. He's the owner, after all. That's part of what private ownership is all about — the right to exclude others from coming onto his property.

Suppose the homeowner throws a party in which he excludes blacks, Jews, immigrants, and poor people. All of his 100 invited guests are rich white Americans.

Are there any First Amendment issues here? Would those lawyers in the wedding- cake controversy be vexed over whether the homeowner has the right to discriminate? Would they say that the issue turns on how "creative" the party is?

Of course not. Free speech and the First Amendment wouldn't even enter the picture. Under principles of private property and liberty, the homeowner has the right to discriminate. If the state were to force him to invite blacks, Jews, immigrants, and poor people to his party, there is no way that he could be considered to be a free person. Freedom necessarily entails the right of the homeowner to discriminate on any grounds he wants when it comes to who enters onto his property.

The same principle applies to a person's business. It's his business. It's his private property. He has just as much right to discriminate here as he does with his home.

Thus, by applying that principle, the wedding-cake controversy disintegrates. Bakers have the right to bake a cake for whomever they want and for whatever reason they want. It might well be that they hate blacks, Jews, immigrants, and poor people. Motive doesn't matter. What matters is that under principles of liberty and private property, private business owners have as much right to discriminate as private homeowners.

By the same token, consumers have the right to boycott the business that is discriminating against others and to advocate that other people boycott it as well. That's how the free market deals with businesses that people perceive are wrongfully discriminating against others. It nudges them to change their position through loss of sales revenues rather than force them to do so with the power of a government gun.

The problem, however, is that long ago the U.S. Supreme Court held that when people open their businesses to the public, everything changes. The Court held that when business owners do that, they subject themselves to governmental control, including state anti-discrimination laws.

But that's ridiculous. Why should the fact that a person is selling privately owned things to others cause the principles of liberty and private property to be compromised or abandoned? Why shouldn't the business owner still be free to discriminate in determining who enters his privately owned business and to whom he sells his private property?

By abandoning those principles of liberty and private property, it has naturally left lawyers vexed on how to resolve the wedding-cake dispute. It has left them relying on the First Amendment to come up with entirely subjective and arbitrary conclusions that have no consistent underlying legal principle undergirding them.

Does the baker have a legal duty to sell his artistic designs to everyone? Does he have the legal right to refrain from selling his artistic designs to certain classes of people? Is a cake an artistic design? Is it like a painting? Is the owner of a painting required to make the sale of his painting open to everyone, like at a public auction? How about the owner of a cake?

Do you see how ludicrous all this is? And it's all because many decades ago the courts abandoned the principle that liberty and private property necessarily entail the right of freedom of association, which necessarily entails the right to discriminate. If they hadn't abandoned that principle, there wouldn't be a wedding-cake controversy before the Supreme Court, and Americans would a less controlled and regulated by the state than they are today.

The American empire is coming to an end. The U.S. economy is being drained by wars in the Middle East and vast military expansion around the globe. It is burdened by growing deficits, along with the devastating effects of deindustrialization and global trade agreements. Our democracy has been captured and destroyed by corporations that steadily demand more tax cuts, more deregulation and impunity from prosecution for massive acts of financial fraud, all the while looting trillions from the U.S. treasury in the form of bailouts. The nation has lost the power and respect needed to induce allies in Europe, Latin America, Asia and Africa to do its bidding. Add to this the mounting destruction caused by climate change and you have a recipe for an emerging dystopia. Overseeing this descent at the highest levels of the federal and state governments is a motley collection of imbeciles, con artists, thieves, opportunists and warmongering generals. And to be clear, I am speaking about Democrats, too.

The empire will limp along, steadily losing influence until the dollar is dropped as the world's reserve currency, plunging the United States into a crippling depression and instantly forcing a massive contraction of its military machine.

Short of a sudden and widespread popular revolt, which does not seem likely, the death spiral appears unstoppable, meaning the United States as we know it will no longer exist within a decade or, at most, two. The global vacuum we leave behind will be filled by China, already establishing itself as an economic and military juggernaut, or perhaps there will be a multipolar world carved up among Russia, China, India, Brazil, Turkey, South Africa and a few other states. Or maybe the void will be filled, as the historian Alfred W. McCoy writes in his book "In the Shadows of the American Century: The Rise and Decline of US Global Power," by "a coalition of transnational corporations, multilateral military forces like NATO, and an international financial leadership self-selected at Davos and Bilderberg" that will "forge a supranational nexus to supersede any nation or empire."

Under every measurement, from financial growth and infrastructure investment to advanced technology, including supercomputers, space weaponry and cyberwarfare, we are being rapidly overtaken by the Chinese. "In April 2015 the U.S. Department of Agriculture suggested that the American economy would grow by nearly 50 percent over the next 15 years, while China's would triple and come close to surpassing America's in 2030," McCoy noted. China became the world's second largest economy in 2010, the same year it became the world's leading manufacturing nation, pushing aside a United States that had dominated the world's manufacturing for a century. The Department of Defense issued a sober report titled "At Our Own Peril: DoD Risk Assessment in a Post-Primacy World." It found that the U.S. military "no longer enjoys an unassailable position versus state competitors," and "it no longer can … automatically generate consistent and sustained local military superiority at range." McCoy predicts the collapse will come by 2030.

Empires in decay embrace an almost willful suicide. Blinded by their hubris and unable to face the reality of their diminishing power, they retreat into a fantasy world where hard and unpleasant facts no longer intrude. They replace diplomacy, multilateralism and politics with unilateral threats and the blunt instrument of war.

This collective self-delusion saw the United States make the greatest strategic blunder in its history, one that sounded the death knell of the empire—the invasion of Afghanistan and Iraq. The architects of the war in the George W. Bush White House, and the array of useful idiots in the press and academia who were cheerleaders for it, knew very little about the countries being invaded, were stunningly naive about the effects of industrial warfare and were blindsided by the ferocious blowback. They stated, and probably believed, that Saddam Hussein had weapons of mass destruction, although they had no valid evidence to support this claim. They insisted that democracy would be implanted in Baghdad and spread across the Middle East. They assured the public that U.S. troops would be greeted by grateful Iraqis and Afghans as liberators. They promised that oil revenues would cover the cost of reconstruction. They insisted that the bold and quick military strike—"shock and awe"—would restore American hegemony in the region and dominance in the world. It did the opposite. As Zbigniew Brzezinski noted, this "unilateral war of choice against Iraq precipitated a widespread delegitimation of U.S. foreign policy."

Historians of empire call these military fiascos, a feature of all late empires, examples of "micro-militarism." The Athenians engaged in micro-militarism when during the Peloponnesian War (431-404 B.C.) they invaded Sicily, suffering the loss of 200 ships and thousands of soldiers and triggering revolts throughout the empire. Britain did so in 1956 when it attacked Egypt in a dispute over the nationalization of the Suez Canal and then quickly had to withdraw in humiliation, empowering a string of Arab nationalist leaders such as Egypt's Gamal Abdel Nasser and dooming British rule over the nation's few remaining colonies. Neither of these empires recovered.

"While rising empires are often judicious, even rational in their application of armed force for conquest and control of overseas dominions, fading empires are inclined to ill-considered displays of power, dreaming of bold military masterstrokes that would somehow recoup lost prestige and power," McCoy writes. "Often irrational even from an imperial point of view, these micromilitary operations can yield hemorrhaging expenditures or humiliating defeats that only accelerate the process already under way."

Empires need more than force to dominate other nations. They need a mystique. This mystique—a mask for imperial plunder, repression and exploitation—seduces some native elites, who become willing to do the bidding of the imperial power or at least remain passive. And it provides a patina of civility and even nobility to justify to those at home the costs in blood and money needed to maintain empire. The parliamentary system of government that Britain replicated in appearance in the colonies, and the introduction of British sports such as polo, cricket and horse racing, along with elaborately uniformed viceroys and the pageantry of royalty, were buttressed by what the colonialists said was the invincibility of their navy and army. England was able to hold its empire together from 1815 to 1914 before being forced into a steady retreat. America's high-blown rhetoric about democracy, liberty and equality, along with basketball, baseball and Hollywood, as well as our own deification of the military, entranced and cowed much of the globe in the wake of World War II. Behind the scenes, of course, the CIA used its bag of dirty tricks to orchestrate coups, fix elections and carry out assassinations, black propaganda campaigns, bribery, blackmail, intimidation and torture. But none of this works anymore.

The loss of the mystique is crippling. It makes it hard to find pliant surrogates to administer the empire, as we have seen in Iraq and Afghanistan. The photographs of physical abuse and sexual humiliation imposed on Arab prisoners at Abu Ghraib inflamed the Muslim world and fed al-Qaida and later Islamic State with new recruits. The assassination of Osama bin Laden and a host of other jihadist leaders, including the U.S. citizen Anwar al-Awlaki, openly mocked the concept of the rule of law. The hundreds of thousands of dead and millions of refugees fleeing our debacles in the Middle East, along with the near-constant threat from militarized aerial drones, exposed us as state terrorists. We have exercised in the Middle East the U.S. military's penchant for widespread atrocities, indiscriminate violence, lies and blundering miscalculations, actions that led to our defeat in Vietnam.

The brutality abroad is matched by a growing brutality at home. Militarized police gun down mostly unarmed, poor people of color and fill a system of penitentiaries and jails that hold a staggering 25 percent of the world's prisoners although Americans represent only 5 percent of global population. Many of our cities are in ruins. Our public transportation system is a shambles. Our educational system is in steep decline and being privatized. Opioid addiction, suicide, mass shootings, depression and morbid obesity plague a population that has fallen into profound despair. The deep disillusionment and anger that led to Donald Trump's election—a reaction to the corporate coup d'état and the poverty afflicting at least half of the country—have destroyed the myth of a functioning democracy. Presidential tweets and rhetoric celebrate hate, racism and bigotry and taunt the weak and the vulnerable. The president in an address before the United Nations threatened to obliterate another nation in an act of genocide. We are worldwide objects of ridicule and hatred. The foreboding for the future is expressed in the rash of dystopian films, motion pictures that no longer perpetuate American virtue and exceptionalism or the myth of human progress.

"The demise of the United States as the preeminent global power could come far more quickly than anyone imagines," McCoy writes. "Despite the aura of omnipotence empires often project, most are surprisingly fragile, lacking the inherent strength of even a modest nation-state. Indeed, a glance at their history should remind us that the greatest of them are susceptible to collapse from diverse causes, with fiscal pressures usually a prime factor. For the better part of two centuries, the security and prosperity of the homeland has been the main objective for most stable states, making foreign or imperial adventures an expendable option, usually allocated no more than 5 percent of the domestic budget. Without the financing that arises almost organically inside a sovereign nation, empires are famously predatory in their relentless hunt for plunder or profit—witness the Atlantic slave trade, Belgium's rubber lust in the Congo, British India's opium commerce, the Third Reich's rape of Europe, or the Soviet exploitation of Eastern Europe."

"So delicate is their ecology of power that, when things start to go truly wrong, empires regularly unravel with unholy speed: just a year for Portugal, two years for the Soviet Union, eight years for France, eleven years for the Ottomans, seventeen for Great Britain, and, in all likelihood, just twenty-seven years for the United States, counting from the crucial year 2003 [when the U.S. invaded Iraq]," he writes.

Many of the estimated 69 empires that have existed throughout history lacked competent leadership in their decline, having ceded power to monstrosities such as the Roman emperors Caligula and Nero. In the United States, the reins of authority may be in the grasp of the first in a line of depraved demagogues.

"For the majority of Americans, the 2020s will likely be remembered as a demoralizing decade of rising prices, stagnant wages, and fading international competitiveness," McCoy writes. The loss of the dollar as the global reserve currency will see the U.S. unable to pay for its huge deficits by selling Treasury bonds, which will be drastically devalued at that point. There will be a massive rise in the cost of imports. Unemployment will explode. Domestic clashes over what McCoy calls "insubstantial issues" will fuel a dangerous hypernationalism that could morph into an American fascism.

A discredited elite, suspicious and even paranoid in an age of decline, will see enemies everywhere. The array of instruments created for global dominance—wholesale surveillance, the evisceration of civil liberties, sophisticated torture techniques, militarized police, the massive prison system, the thousands of militarized drones and satellites—will be employed in the homeland. The empire will collapse and the nation will consume itself within our lifetimes if we do not wrest power from those who rule the corporate state.

On October 10, Deputy Attorney General Rod Rosenstein gave a speech at the U.S. Naval Academy about encryption. I have a lot to say about his remarks, so this will be a long post. Much of Rosenstein's speech recycled the same old chestnuts that law enforcement's been repeating about crypto for years. I'm happy to roast those chestnuts. But his remarks went beyond the usual well-worn lines to a new level of inflammatory rhetoric that signals a change in American law enforcement's approach to the crypto wars.

The "going dark" debate over encryption is largely a branding exercise. As UC Davis cryptography professor Phil Rogaway has pointed out, even the label "going dark" has a Lakoffian aspect to it, evoking our ancient fear of the dark. When we call this the "going dark" debate, we're giving more power to that framing. Dictating the labels we use has been an important arrow in DOJ's rhetorical quiver as it tries to persuade the American public that encryption is bad for us. What I would brand "strong encryption," the DOJ likes to call "warrant-proof" encryption. We're both referring to the same thing: encryption that does not provide a mechanism for law enforcement, or the provider of the encryption itself, to gain access to plaintext—even with a warrant.1 Yet Rod Rosenstein and I use different rhetorical frames, because we have different answers to this question: Should there exist spaces in human society that cannot be policed?

This, too, is just another framing, but I believe it's a fundamental question that almost never gets stated overtly. It's clear what the DOJ's answer is. "[T]here has never been a right to absolute privacy," Rosenstein says, repeating a well-worn line. But the government has never been entitled to absolute surveillance, either. We can have quiet conversations face-to-face, or cast a letter into the fire. And some evidence can lie beyond the reach of the police, thanks to the Fifth Amendment and other privileges, which we have gradually expanded over time as a matter of sound public policy, informed by "reason and experience." "Warrant-proof" is a cute term, but warrants are not magical talismans.

Rosenstein didn't coin the phrase "warrant-proof" encryption, and it's been called out before as just rhetoric. What's new, at least to me, is the label Rosenstein used for its opposite: "responsible encryption." Yet I've learned that even this term is not new: in 1996, the then-Director of the FBI was already referring to "socially-responsible encryption." (Hat tip.) Now, in 2017, Rosenstein is reviving it. By "responsible," he means "capable of granting law enforcement access to plaintext." Given the DOJ's answer to the question I posed above, it comes as no surprise that in this framing, by definition, end-to-end encryption of communications is irresponsible. Building a smartphone that's encrypted by default, from which not even its manufacturer can extract plaintext data, is irresponsible.

Rosenstein's rhetoric about "responsible encryption" encapsulates in two words a speech that repeatedly portrays encryption as a dangerous weapon used almost exclusively by wrongdoers. It portrays the tech companies that provide encrypted products and services as scofflaws2 recklessly enabling those wrongdoers behind a fig-leaf of "absolute privacy." (This is itself a rhetorical flourish, given that this is a credo almost none of these companies actually espouse, about which more later.)

But responsibility is transitive, not reflexive. Responsibility does not exist in a vacuum; it must be answerable. The phrase "responsible encryption" prompts the question, responsible to whom? To Rosenstein, tech companies must be answerable to law enforcement above all other masters, and it is irresponsible to do otherwise. We have seen what "responsible" encryption products look like: the Clipper chip, whose notorious security flaws helped to decide the crypto wars of the 1990s. The Clipper chip was responsible to the U.S. government. It was not responsible to its would-be users, who wanted to secure their phone conversations.

The notion of computer security as a core value is not totally lost on Rosenstein. He pays the usual lip service to encryption's positive uses and makes the usual claim that the DOJ "understand[s] and encourage[s] strong cybersecurity." Yet he refuses to acknowledge the agreement among computer security experts that the DOJ vision of "responsible" encryption necessarily means serious security shortcomings.

Instead, he invokes the lazy old excuse that the wizards of Silicon Valley, currently hard at work on "drones and fleets of driverless cars, a future of artificial intelligence and augmented reality," just need to nerd harder. "Surely such companies could design consumer products that provide data security while permitting lawful access with court approval." If they keep insisting that they can't, it must be because they're not being "responsible." It's easier to pretend that the objections to backdoors (a term he vehemently disavows) are not about technical realities, but rather, purely about policy choices—driven, Rosenstein insists, by greed.3

There is no room, in this worldview, for the notion of tech companies being responsible, answerable, to their legions of everyday users. There is designing to serve law enforcement, and there is designing to protect pedophiles and terrorists; that's it. Rosenstein willfully ignores encryption's use by millions of ordinary people for completely legitimate purposes. Tech companies don't keep improving their encryption designs because they want to provide better security to their users (and thereby improve the security ecosystem overall). No, they are interested only in "selling products and making money." Law enforcement, by contrast, is "in the business of preventing crime and saving lives."

This is Rosenstein's anti-crypto rhetoric at its most blatant, and its most insulting. Strong encryption does prevent crime, such as identity theft. That's something "responsible" companies need to worry about at a time when massive data breaches regularly dominate the headlines. Strong encryption does save lives, such as by helping protect individuals from being stalked by abusive family members or intimate partners. That's something a "responsible" law enforcement agency, charged with protecting and serving the public, should embrace. In a time when it's open season on women, immigrants, Muslims, Black people, trans and gender nonconforming people, and anyone else who's "other," strong encryption helps ward off victimization—not just by private bad actors, but by the state too.

Perhaps anticipating critiques like those above, Rosenstein proactively paints himself as a victim under assault. In a speech that has already used the word "attack" 15 times, he mentions it one final time in the context of the claim that "Sounding the alarm about the dark side of technology is not popular. Everyone who speaks candidly about 'going dark' faces attacks by advocates of absolute privacy." This man is the second highest ranking law enforcement official in the mightiest country the world has ever seen. Portraying himself as an inconvenient gadfly boldly stating unpopular truths, who is then "attacked," like a Cassandra or Socrates, by the arrayed armies of… civil liberties advocates (who, he goes on to say, are only in it for the money), is frankly bizarre.

It is also a clever means of turning the focus away from the thoroughly discredited ideas he is rehashing, and onto those of us who have had to discredit them, over and over again, ever since law enforcement started "sounding the alarm" about encryption two decades ago. The "absolute privacy" stance is one which, as noted, few companies offering encrypted devices and services actually take—as any large tech company's transparency report on government demands for user data will readily reveal. It's also a rarity among privacy and civil liberties advocates. (To say nothing of the actual cryptographers and other information security professionals whose expert opinions Rosenstein does not even acknowledge, since their conclusions do not fit into the only two categories of motivation he can think of for espousing strong encryption: "profit" and "sincere concern" for privacy.)

Yet branding everyone who is against weakened crypto as "advocates of absolute privacy" is a sly way of reframing the debate. It forces civil liberties activists to respond to that framing and it channels those responses. For people who embrace Rosenstein's label (and some do), whatever they say can safely be ignored, as privacy absolutists are not to be taken seriously. The other option is to push back against the hyperbole and deny that one is a privacy absolutist (and thereby allow the DOJ to pit those who are not against those who are, driving a wedge between people who are fundamentally on the same side in this debate).

If you fall into the latter camp, Rosenstein has gotten his foot in the door. He has put your commitment to privacy and security up for negotiation. Surely you are reasonable people, and you can be persuaded to move your preferred balance point between privacy and law enforcement—or security and security—to favor the law enforcement side a little more. There is little incentive to do that, given that there's been a clear winner in the latest round of the crypto wars and it's not the DOJ. But if you don't budge, then law enforcement can claim you're refusing to have "mature conversations" about encryption. That's the line the government trots out every time its "efforts to engage" with tech companies do not "bear fruit," in Rosenstein's words.

But, he warns darkly, the time for talking is over. In October 2015, then-FBI Director Jim Comey had backed off a "legislative remedy" to the "going dark" issue, promising instead to "continue the conversations with industry"—that is, pressure tech companies to "voluntarily" change their encryption designs in closed-door meetings held outside of public view and accountability. Two years later, it appears the DOJ has given up on those conversations. Tech companies won't knuckle under and design their encryption the way law enforcement wants them to unless a law passes that forces their hand. (Rosenstein euphemistically calls this companies' "willing[ness] to make accommodations when required by the government.")

Rosenstein even goes so far as to hold up oppressive governments as an instructive example. Tech companies, he says, have proved willing to compromise their products in order to do business in countries with "questionable human rights records," for insalubrious purposes such as censorship. Therefore, he reasons, those companies should be willing to adopt "responsible" encryption that permits access by U.S. law enforcement. That is, if it's OK for a company to accede to oppressive states' demands, then it's even more OK to do so for our own government, given its ostensibly greater respect for human rights and the rule of law. (Rosenstein invokes American respect for the rule of law repeatedly in his remarks, delivered, you'll recall, to a room full of Navy servicemembers—the unsubtle implication being that their devotion to strong encryption makes the tech companies un- or anti-American.)

This remarkable line of reasoning inverts one of the common policy arguments for governments to embrace strong encryption. Advocates of strong encryption like to argue that if a Western democratic government adopts an anti-encryption national policy, then we have no moral leg to stand on when countries with dismal human rights records do the same. Call it a "slippery slope" argument. Rosenstein thinks American tech companies should fall up that slippery slope. He does not see, in their global market dominance, an opportunity to spread our values abroad. (Perhaps I should not be surprised, given America's abdication since January 20 of its previous role—fraught though it was—as a champion of democracy, freedom, and human rights on the world stage.)

Here's the thing: Rosenstein has a point. When a company submits its tech products to security reviews by China or source code audits by Russia, when it aids official censorship or helps a regime persecute journalists, it opens itself up to a chorus of "me toos" by those wanting a similar deal. It has indicated that its commitment to its users' security, privacy, and human rights can be bought off; that it will follow unwise laws as the price of continuing to do business in a particular market. Rosenstein, as said, is unable to believe that tech companies might be answerable to their users, rather than to money or the state—and they have proved him right.

If that's the case, Rosenstein seems to be saying, the U.S. may as well go ahead and pass its own unwise law, mandating that technology companies weaken their products' security by kneecapping their encryption. The government won't tell them how; it will merely require them to be able "to achieve the crucial end": court-ordered law enforcement access to plaintext. If such a law (however ill-advised) passes, Rosenstein foresees that the companies currently vexing him will have no choice but to follow suit. And even if "less-used platforms" don't comply, getting "only major providers" to weaken their crypto "would still be a major step forward."

What Rosenstein is capitalizing on here is the shifting winds of public opinion, which lately have become more hostile to the giants of Silicon Valley. The whiff of regulation is in the air, and Rosenstein is cannily fanning it in the direction of the encryption debate. His speech was not truly directed at the Navy choir to which he was preaching: it was aimed at the big companies like Apple and Facebook (owner of WhatsApp) whose continuing efforts to better secure their users' data have so infuriated Rosenstein and his colleagues in law enforcement. The message: "You wouldn't do this the easy way, so now let's try it the hard way."

The gloves are off; the long knives are coming out. It's a scary story just in time for Halloween, courtesy of the zombie encryption debate that refuses to die.

1 Side note: "law enforcement is entitled to plaintext because we have a warrant" is a red herring, given the numerous circumstances under which police are allowed to obtain the contents of communications without a warrant. But that's a different blog post.

2 For example, he says that creators of encrypted messaging apps "do something that the law does not allow telephone carriers to do: they exempt themselves from complying with court orders." That is a misstatement of the law. The federal Communications Assistance for Law Enforcement Act, 47 U.S.C. § 1002(b)(3), says exactly the opposite about phone carriers and encryption, as my colleague Al Gidari has explained. Rosenstein surely knows that, being one of the country's top lawyers and all.

3 Allow me to cite Phil Rogaway again, because this paper is just that good: "Yet the [going dark] narrative's uneasy coexistence with reality hasn't mattered. It is, in fact, beautifully crafted to frame matters in a way guaranteed to lead discourse where authority wants it to go. It is a brilliant discourse of fear: fear of crime; fear of losing our parents' protection; even fear of the dark. The narrative's well-honed deceptiveness is itself a form of tradecraft."

In the aftermath of World War I, President Woodrow Wilson set out to make the world safe for democracy. Since then, U.S. Presidents have marched to the drumbeat of Wilsonian idealism. Indeed, most U.S. foreign policy is carried out under the pretext — and in some cases perhaps the genuine belief — that America is delivering democracy to the rest of the world. President Trump’s recent pronouncements at the United Nations are neither new nor unusual.

Most people, including most Americans, would be surprised to learn that the word “democracy” does not appear in the Declaration of Independence (1776) or the Constitution of the United States of America (1789). They would also be shocked to learn the reason for the absence of the word democracy in the founding documents of the U.S.A. Contrary to what propaganda has led the public to believe, America’s Founding Fathers were skeptical and anxious about democracy. They were aware of the evils that accompany a tyranny of the majority. The Framers of the Constitution went to great lengths to ensure that the federal government was not based on the will of the majority and was not, therefore, democratic.

The Constitution divided the federal government into legislative, executive and judicial branches. Each branch was designed to check the power of the other branches. The Founders did not want to rely only on the voters to check government power. As a result, citizens were given very little power to select federal officials.

Neither the President, nor members of the judiciary, nor the Senate were elected by direct popular vote. Only the members of the House of Representatives were directly elected by popular vote. Even in this case, the franchise was quite restricted.

If the Framers of the Constitution did not embrace democracy, what did they adhere to? To a man, the Framers agreed that the purpose of government was to secure citizens in John Locke’s trilogy of the rights to life, liberty and property. The Framers wrote extensively and eloquently. On property, for example, John Adams wrote that “the moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

The Founders’ actions often spoke even louder than their words. Alexander Hamilton, a distinguished lawyer, took on many famous cases out of principle. After the Revolutionary War, the state of New York enacted harsh measures against Loyalists and British subjects. These included the Confiscation Act (1779), the Citation Act (1782) and the Trespass Act (1783). All involved the taking of property. In Hamilton’s view, these Acts illustrated the inherent difference between democracy and the law. Even though the Acts were widely popular, they flouted fundamental principles of property law. Hamilton carried his views into action and successfully defended — in the face of enormous public hostility — those who had property taken under these three New York state statutes.

The Constitution was designed to further the cause of liberty, not democracy. To do that, the Constitution protected individuals’ rights from the government, as well as from their fellow citizens. To that end, the Constitution laid down clear, unequivocal and enforceable rules to protect individuals’ rights. In consequence, the government’s scope and scale were strictly limited. Economic liberty, which is a precondition for growth and prosperity, was enshrined in the Constitution.

After European settlement, America consisted of thirteen English colonies. They benefited from a rather light administration from London and salutary neglect. This contrasted with the French colonies, which were controlled from Paris, and the Spanish colonies, which had entire institutional superstructures imposed from Spain.

Everything did not go well in the American colonies, however. One major colonial problem centered on money. Officially, British silver coins were the coin of the realm in America. But there were problems. The Navigation Acts prohibited the export of silver coins from England. There was also a prohibition against any of the colonies establishing mints. As a result, there was an endemic shortage of silver coins in the colonies. To fill this large gap, bills of credit were issued and circulated freely during the first half of the eighteenth century.

This resulted in high inflation, which forced most of the colonies to abandon fixed exchange rates and a specie standard. Things finally deteriorated to such an extent that the British Board of Trade imposed the Currency Acts of 1751 and 1764. These prohibited the issuance and use of bills of credit not fully backed by specie. The prohibitions against paper money created an enormous source of resentment in the colonies. Coupled with the better-known Stamp Act of 1765, the prohibitions on bills of credit set the stage for the Declaration of Independence and the ensuing Revolutionary War.

The Revolutionary War added to America’s money problems. The best estimates place the cost of the Revolutionary War at about 15 to 20 percent of the colonies’ GNP. Roughly 85 percent of it was financed with fiat money. During the 1775-80 period, annual inflation was about 65 percent. Subsequently — and prior to the Constitutional Convention (1787) — the economic situation was one in which individual states increased taxes and regulations dramatically and money remained unstable. In addition, there was a great deal of political corruption and scandal. And to top it off, the economy was in a general slump which was punctuated by the crisis of 1787.

As a reaction to the overall political-economic situation, the Constitutional Convention convened in 1787 in Philadelphia. In due course, the Constitution was crafted and ratified in 1789. It is a short, clear, intelligible document. The Constitution’s preamble contains only 52 words which are followed by seven short articles and ten amendments known as the Bill of Rights (1791).

The original Constitution established the rule of law and limited government. It is noteworthy that about 20 percent of the Constitution itemizes things that the federal and state governments may not do, while only 10 percent of the Constitution is concerned with positive grants of power. In total, the legitimate powers granted by the Constitution were less than those that had existed. The bulk of the Constitution — about 70 percent — addresses the Framers’ conception of their main task: to bring the United States and its government under the rule of law.

The Constitution is primarily a structural and procedural document that itemizes who is to exercise power and how they are to exercise it. A great deal of stress is placed on the separation of powers and the checks and balances in the system. These were not a Cartesian construct or formula aimed at social engineering, but a shield to protect the people from the government. In short, the Constitution was designed to govern the government, not the people.

The Bill of Rights establishes the rights of the people against infringements by the State. The only thing that the citizens can demand from the State, under the Bill of Rights, is for a trial by a jury. The rest of the citizens’ rights are protections from the State. For roughly a century after the Constitution was ratified, private property, contracts and free internal trade within the United States were sacred. The scope and scale of the government remained very constrained. All this was very consistent with what was understood to be liberty.

A remark about the Framers and the public is in order. There were 55 Framers and 35 had attended college. The college entry standards in those days were very high and strict. At the age of 14 or 15, the normal college entry age, students were required to be fluent in both Latin and Greek and proficient in the Classics. They were skilled at the art of rhetoric and were keenly aware of the necessity of garnering public support for their constitutional project. For the Framers, policies needed to be developed from the bottom up.

At the time, Americans were literate and well informed, via pamphlets and manuscripts, about the political debates of the day. There were four times as many newspapers in the United States as there were in France, which was the center of continental thinking and debate on many constitutional and philosophic matters. The Federalist Papers were published in 1787 and 1788 in New York City’s Independent Journal, an ordinary newspaper. These important essays — written under pseudonyms by Alexander Hamilton, James Madison and John Jay — were of very high quality and set the stage for the Constitutional Convention and the resulting product. In passing, it is worth mentioning that Hamilton organized this project, wrote most of the essays, and of all the Founding Fathers, performed most of the intellectual work for the least historical credit. That said, two notable economists have given Hamilton his due. Lionel Robbins thought the Federalist Papers were “the best book on political science and its broad practical aspects written in the last thousand years.” And if that were not enough, Milton Friedman wrote in 1973 that Federalist Paper 15, written by Hamilton, “contains a more cogent analysis of the European Common Market than any I have seen from the pen of a modern writer.”

After the Constitution was ratified and George Washington was elected President, the new federal government lacked credibility. Public finances hung like a threatening cloud over the government. Recall that paper money and debt were innovations of the colonial era, and that once the Revolutionary War began, Americans used these innovations to the maximum. As a result, the United States was born in a sea of debt. A majority of the public favored a debt default. Alexander Hamilton, acting as Washington’s Secretary of the Treasury, was firmly against default. As a matter of principle, he argued that the sanctity of contracts was the foundation of all morality. And as a practical matter, Hamilton argued that good government depended on its ability to fulfill its promises.

Hamilton won the argument and set about digging the country out of its financial debacle. Among other things, Hamilton was — what would today be called — a first-class financial engineer. He established a federal sinking fund to finance the Revolutionary War debt. He also engineered a large debt swap in which the debts of individual states were assumed by the newly created federal government. By August 1791, federal bonds sold above par in Europe, and by 1795, all foreign debts had been paid off. Hamilton’s solution for America’s debt problem provided the country with a credibility and confidence shock.

The state of economic affairs in the United States, roughly until World War I, was in the spirit of the Constitution. The economy flourished, with large increases in labor and capital inputs as well as strong productivity growth. There was, of course, one near fatal interruption during this period: the Civil War. The war consumed 15 to 20 percent of GNP, about the same proportion as during the Revolutionary War. War finance was somewhat similar in the Confederacy (the South) as it was during the Revolutionary War. About 60 percent of the financing for the southern effort was paper money. The North also resorted to fiat money financing, but at only a 13 percent rate. Consequently, there was an inflationary surge.

In addition to the major disruption caused by the Civil War, it is worth mentioning one major anomaly in the U.S. economy: lands owned by the federal, as well as state and local, governments.

Alexander Hamilton, the first Secretary of the Treasury, wanted to sell the public lands as fast as possible. This did not happen. In consequence, the government still owns a huge amount of real estate. Its surface area is about six times larger than the total area of France. This is a stateowned enterprise. As you might expect, it is also unproductive. Detailed studies of SOE lands indicate that they are only about 25-30 percent as productive as comparable private ones.

America’s SOE lands have been the center of repeated debates about the free market system in the United States. Indeed, the American Economic Association put itself at the center of one of these debates. One, possibly the major, motivation for establishing the American Economic Association was as a protest against laissez-faire attitudes in the United States. Not surprisingly, the May 1885 American Economic Review contains three papers justifying the retention of government-owned timberlands!

On the eve of World War I, government expenditures were less than 2 percent of GNP and 99 percent of the population paid no income tax. The income tax had just been introduced, but the top rate was only 7 percent and applied to incomes exceeding $500,000. The federal government had around 400,000 employees, less than 1 percent of the labor force. About 165,000 troops were on active duty. No federal regulations of capital or labor markets existed. Agricultural production and distribution were also unregulated.

There was no minimum wage rate and no social security. One area where there was a rather aggressive interference in the economy concerned the rates and tariffs that the railroads charged. Antitrust was also strong.

The conflagration of World War I marks a violent break with the letter and spirit of the Constitution. Property rights were suspended on a large scale. There were wide-scale nationalizations of rail, telephone, telegraph and to a lesser degree ocean shipping. Over 100 manufacturing plants were nationalized. The government got involved in labor-management relations under the Adams Act in 1916. Conscription was instituted. The Espionage Act was passed in 1917. The Sedition Act of 1918 imposed penalties for anti-government expression, subverting the Bill of Rights. The novelist, Upton Sinclair was actually arrested for reading the Bill of Rights and Roger Baldwin, one of the founders of the American Civil Liberties Union, was arrested for reading the Constitution. President Woodrow Wilson accomplished all this under emergency powers granted to him by Congress in 1916.

Much of this anti-Constitutional apparatus was scrapped after World War I. However, residues remained and eventually resurfaced. All it took were other national emergencies — the Great Depression, World War II, the Vietnam War, and so on. With each, laws were enacted, bureaus created and the budgets enlarged. In many cases, these changes turned out to be permanent. The result is that crises acted as a ratchet, shifting the trend line of government size and scope up to a higher level.

It comes as no surprise that governments spend more money and regulate more actively during crises — wars and economic bailouts are expensive and complicated. But a more active government also attracts opportunists, who perceive that a national emergency can serve as a useful pretext for achieving their own objectives.

The U.S. and other countries seem no more aware of this today than they were in the past. And yet history has provided many examples to illustrate how damaging it is. Take the Great Depression. At that time, the organized farm lobbies, having sought subsidies for decades, took advantage of the crisis to pass a sweeping rescue package, the Agricultural Adjustment Act, whose title declared it to be “an act to relieve the existing national economic emergency.”

Almost 80 years later, the farmers are still sucking money from the rest of society and agricultural policy has been enlarged to satisfy a variety of other interest groups, including conservationists, nutritionists and friends of the Third World. Then, during World War II, when government accounted for nearly half the U.S. GDP, virtually every interest group tried to tap into the vastly enlarged government budget. Even bureaus seemingly remote from the war effort, such as the Department of the Interior (which is in charge of government lands and natural resources), claimed to be performing “essential war work” and to be entitled to bigger budgets and more personnel.

Within the U.S. government, the war on terrorism has given cover to a multitude of parochial opportunists, whose proposals range from bailing out the airlines to nationalizing vaccine production. As a result, former President George W. Bush — a so-called conservative — ushered in a record-setting expansion of government. This trend continued with the left-of-center President Obama. And now, populist President Trump promises more of the same.

What lessons can we learn? First, “democracy” and “freedom” are not interchangeable words. Second, only the first century of the American experience represents a standard for freedom. Expanding democracy is a slogan which requires great caution. It can easily result in elected tyranny. Freedom is the concept. Our challenge is to persuade every citizen that benefits flow from freedom’s practical applications. Freedom might then flourish in very diverse and unexpected forms in different parts of the world.

Authored by Steve H. Hanke of the Johns Hopkins University. Follow him on Twitter @Steve_Hanke.

[BA:] This is absolutely what it all comes down to in the crucial argument about privacy. If you want a world that is actually worth living in, then you must categorically elevate privacy above fake “public safety.” For our take on this argument, please see Fuck Safety.

Contrary to Rosenstein’s childishly tyrannical premise around the constitutionality of the right to privacy, the US Constitution makes it very clear that it is intended to work in the opposite direction than Rosenstein posits. The Constitution does not have to specifically provide for “the right to sell warrant-proof encryption,” or any of the literally infinite number of natural rights. The 10th Amendment makes it clear that the Constitution does not tell the people what they can do; it specifically tells the government what it can do, and any powers that it does not explicitly grant to the federal government are implicitly prohibited to the federal government and reserved to the states and the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

And there is definitely nothing in the Constitution that says that the government can legislate away the privacy of the people.

A high-ranking Department of Justice official took aim at encryption of consumer products today, saying that encryption creates “law-free zones” and should be scaled back by Apple and other tech companies. Instead of encryption that can’t be broken, tech companies should implement “responsible encryption” that allows law enforcement to access data, he said.

“Warrant-proof encryption defeats the constitutional balance by elevating privacy above public safety,” Deputy Attorney General Rod Rosenstein said in a speech at the US Naval Academy today (transcript). “Encrypted communications that cannot be intercepted and locked devices that cannot be opened are law-free zones that permit criminals and terrorists to operate without detection by police and without accountability by judges and juries.”

Rosenstein was nominated by President Donald Trump to be the DOJ’s second-highest-ranking official, after Attorney General Jeff Sessions. He was confirmed by the Senate in April.

Rekindling fight with Apple

Rosenstein’s speech makes several references to Apple, continuing a battle over encryption between Apple and the US government that goes back to the Obama administration. Last year, Apple refused to help the government unlock and decrypt the San Bernardino gunman’s iPhone, but the FBI ended up paying hackers for a vulnerability that it used to access data on the device.

“Fortunately, the government was able to access data on that iPhone without Apple’s assistance,” Rosenstein said. “But the problem persists. Today, thousands of seized devices sit in storage, impervious to search warrants.”

“If companies are permitted to create law-free zones for their customers, citizens should understand the consequences,” he also said. “When police cannot access evidence, crime cannot be solved. Criminals cannot be stopped and punished.”

We asked Apple for a response to Rosenstein’s speech and will update this story if we get one.

Separately, state lawmakers in New York and California have proposed legislation to prohibit the sale of smartphones with unbreakable encryption.

“Responsible encryption”

Despite his goal of giving law enforcement access to encrypted data on consumer products, Rosenstein acknowledged the importance of encryption to the security of computer users. He said that “encryption is a foundational element of data security and authentication,” that “it is essential to the growth and flourishing of the digital economy,” and that “we in law enforcement have no desire to undermine it.”

But Rosenstein complained that “mass-market products and services incorporating warrant-proof encryption are now the norm,” that instant-messaging service encryption cannot be broken by police, and that smartphone makers have “engineer[ed] away” the ability to give police access to data.

Apple CEO Tim Cook has argued in the past that the intentional inclusion of vulnerabilities in consumer products wouldn’t just help law enforcement solve crimes—it would also help criminals hack everyday people who rely on encryption to ensure their digital safety.

Rosenstein claimed that this problem can be solved with “responsible encryption.” He said:

Responsible encryption is achievable. Responsible encryption can involve effective, secure encryption that allows access only with judicial authorization. Such encryption already exists. Examples include the central management of security keys and operating system updates; the scanning of content, like your e-mails, for advertising purposes; the simulcast of messages to multiple destinations at once; and key recovery when a user forgets the password to decrypt a laptop.

No one calls any of those functions a “back door.” In fact, those capabilities are marketed and sought out by many users.

It’s not clear exactly how Rosenstein would implement his desired responsible encryption.

Rosenstein’s “key recovery when a user forgets the password to decrypt a laptop” reference seems to refer to Apple and Microsoft providing the ability to store recovery keys in the cloud. But users who encrypt Mac or Windows laptops aren’t required to do this—they can store the keys locally only if they prefer. To guarantee law enforcement access in this scenario, people who encrypt laptops would have to be forced to store their keys in the cloud. Alternatively, Apple and Microsoft would have to change the way their disk encryption systems work, overriding the consumer’s preference to have an encrypted system that cannot be accessed by anyone else.

Rosenstein gave some further insight into how “responsible encryption” might work in this section of his speech:

We know from experience that the largest companies have the resources to do what is necessary to promote cybersecurity while protecting public safety. A major hardware provider, for example, reportedly maintains private keys that it can use to sign software updates for each of its devices. That would present a huge potential security problem, if those keys were to leak. But they do not leak, because the company knows how to protect what is important. Companies can protect their ability to respond to lawful court orders with equal diligence.

Of course, there are many examples of companies leaking sensitive data due to errors or serious vulnerabilities. The knowledge that errors will happen at some point explains why technology companies take so many precautions to protect customer data. Maintaining a special system that lets third parties access data that would otherwise only be accessible by its owner increases the risk that sensitive data will get into the wrong hands.

No “constitutional right” to warrant-proof encryption

Rosenstein claimed that “responsible encryption can protect privacy and promote security without forfeiting access for legitimate law enforcement needs supported by judicial approval.” But he doubts that tech companies will do so unless forced to:

Technology companies almost certainly will not develop responsible encryption if left to their own devices. Competition will fuel a mindset that leads them to produce products that are more and more impregnable. That will give criminals and terrorists more opportunities to cause harm with impunity.

“Allow me to conclude with this thought,” Rosenstein said just before wrapping up his speech. “There is no constitutional right to sell warrant-proof encryption. If our society chooses to let businesses sell technologies that shield evidence even from court orders, it should be a fully-informed decision.”